CCIA v. Paxton: Regulations limiting social media access violate First Amendment

Students Engaged In Advancing Texas, et al.,

Applicants,

v.

Ken Paxton, in his official capacity as Attorney General of Texas,

Respondent.

Computer & Communications Industry Association,

Applicant,

v.

Ken Paxton, in his official capacity as Attorney General of Texas,

Respondent.

Introduction and summary of the argument

Texas has done something unprecedented. It has attempted to age-gate internet use. And it has deputized private app-store operators as government-mandated gatekeepers to the internet’s wealth of protected speech, information, and speech-facilitating tools. A Fifth Circuit motions panel short-circuited the normal appellate process to permit Respondent to immediately enforce Texas’s revolutionary law. In explaining why, the Fifth Circuit declared seemingly much of the internet to be “commercial speech” that government can regulate so long as it meets the court’s lax application of intermediate scrutiny. The Fifth Circuit’s decision is exceedingly important—and demonstrably wrong. The stay should be vacated. Amici submit this brief to make three points.

First, app stores engage in—and provide their users access to—incredible amounts of fully protected, non-commercial speech. For many Americans, mobile apps are now the primary means to access the internet’s wealth of protected expression, information, and speech-creating tools. Among that protected expression are mobile apps provided by amici and their members. Texas’s App Store Accountability Act (“Act”) regulates those app stores with a law that is content-based both on its face and in its purpose. The Act thus triggers, and fails, strict scrutiny.

Second, the Fifth Circuit’s contrary holding—that app stores and the apps on them engage in nothing more than “commercial speech”—is wrong as a matter of law and fact. Offering access to expressive, informative, and speech-facilitating apps does far more than “propose a commercial transaction.” United States v. United Foods, Inc., 533 U.S. 405, 409 (2001). The panel’s reasoning risks recasting much of the internet as “commercial speech” stripped of the First Amendment’s full protections.

Third, the Fifth Circuit should not have rendered this hugely consequential decision outside of the normal appellate procedure. The stay has massively disrupted the “status quo” that prevailed before Texas age-gated internet use. Dayton Bd. of Educ. v. Brinkman, 439 U.S. 1358, 1359 (1978) (Rehnquist, J., in chambers).

This Court should grant the Applications.

Full brief: CCIA v. Paxton

The post CCIA v. Paxton: Regulations limiting social media access violate First Amendment appeared first on Reason Foundation.

Source: https://reason.org/amicus-brief/ccia-v-paxton-regulations-limiting-social-media-access-violate-first-amendment/